Bar Watch Bulletin February 16, 2006

Over the past 72 hours, the American Bar Association has received much press attention for a Task Force it organized on the subject of terrorist surveillance. The Task Force, which just issued a report highly critical of the Bush Administration, is self-described as bipartisan and is relying heavily on an opinion poll that the ABA undertook on surveillance issues. ABA President Michael Greco asked President George W. Bush to consider the findings of this commission, which were adopted by the ABA House of Delegates on Monday and recommended a Congressional investigation into the President's activities.

At least three members of the seven-member Commission, including its Chairman, donated money to the Kerry Presidential Campaign. Several other members have long records of political giving and past involvement in many ABA initiatives that criticized the Bush Administration's policies.

What follows is a summary of the Task Force's composition and the opinion poll methodology that underlies the data the ABA Commission is presenting.

Chairman Neal Sonnett

Chairman Neal Sonnett is a former Assistant U.S. Attorney and Chief of the Criminal Division for the Southern District of Florida. He previously chaired the ABA Criminal Justice Section and the ABA Task Force on Treatment of Enemy Combatants. He serves as the official ABA observer for the Guantanamo military commissions trials. He also is a member of the ABA Task Force on Attorney-Client Privilege, the Task Force on Gatekeeper Regulation and the Profession, and the ABA Justice Kennedy Commission. Sonnett has given over $23,000 in the past eight years to Democratic candidates and political action committees. According to the FEC, he gave $2,000 to John Kerry for President. He has also given money to Democratic Senators Bob Graham, Thomas Daschle, Maria Cantwell, and Bill Nelson, along with a number of Democratic House and Senate candidates. In 2005, he donated $1540 to Senator Joseph Biden.

Sonnett was previously involved in a controversy over whether or not an ABA resolution condemning any use of torture toward persons in custody by the U.S. government was politically motivated. Critics questioned the timing of the late-filed policy and the ABA's legal arguments in its accompanying report. The policy criticized the government for what it called "a widespread pattern of abusive detention methods...[Those abuses] feed terrorism by painting the United States as an arrogant nation above the law." The resolution was adopted during the ABA annual meeting that took place during the 2004 presidential campaign. Sonnett refuted the allegations of bias. According to an Associated Press account by Gina Holland, Sonnett declared, "I don't think it's the least bit political. We used strong language because it's deserved. We need to get the administration's attention and the public's attention."

Sonnett is currently representing former lobbyist Jack Abramoff.

Mark Agrast

Mark Agrast is a Senior Fellow at the Center for American Progress, "a nonpartisan research and educational institute dedicated to promoting a strong, just and free America that ensures opportunity for all." He previously served as Legislative Director to Democratic Congressman William D. Delahunt. He is a member of the ABA's Board of Governors and served as Past Chairman of the ABA Individual Rights Section.

Agrast has donated over $4,000 to Democratic candidates; he has not donated any money to Republican candidates. He contributed to Representative Barney Frank, Senator Hillary Clinton, Senator Barack Obama, and the 2000 Al Gore and 2004 John Kerry Presidential Campaigns. He has also donated money to the Democratic National Committee.

Before the ABA Task Force was assembled, Agrast was an outspoken critic of the Administration's policies. He co-authored a December 26 Boston Herald editorial urging a Congressional investigation into the domestic surveillance program. On February 2, Agrast and his colleague Ken Gude authored a memo titled, "NSA Domestic Warrantless Wiretapping and the 'Trust Me' President." Agrast and Gude wrote, "The incompetence and lies of this administration have not only failed to enhance our national security, they have endangered it. The administration's campaign to defend the illegal spying program is nothing more than a smokescreen to cover up its failure to make real progress in protecting us from terrorists."

Deborah Enix-Ross

Deborah Enix-Ross is an attorney with Debevoise & Plimpton. She previously served as a Senior Legal Office and Head of the External Relationship and Information Section of the World Intellectual Property Organization Arbitration and Mediation Center in Geneva. She is Chairman-elect of the ABA Section of International Law. No political giving could be determined for Ms. Enix-Ross. She is a contributor to the Center for International Environmental Law. She is also a member of the Advisory Board of the Institute for Transnational Arbitration and the American Arbitration Association Board of Directors Member. No political giving could be determined for Enix-Ross. Stephen Saltzburg

Stephen Saltzburg is a Law Professor at George Washington University Law School. He served as associate independent counsel in the Iran-Contra investigation; as deputy assistant attorney general in the Criminal Division of the U.S. Department of Justice, as the Attorney General's ex-officio representative on the U.S. Sentencing Commission; and as director of the Tax Refund Fraud Task Force, appointed by the Secretary of the Treasury. He currently serves as a council member in the ABA Litigation Section and is a member of the ABA House of Delegates from the Criminal Justice Section. He was appointed to the ABA Task Force on Terrorism and the Law and to the Task Force on Gatekeeper Regulation and the Profession in 2001, and to the ABA President's Advisory Group on Citizen Detention and Enemy Combatant Issues in 2002. He is a director of the National Institute of Military Justice. Professor Saltzburg donated $250 to Hillary Clinton's Senatorial Campaign in 2000.William B. Sessions

William B. Sessions served as Chief of the Government Operations Section of the Department of Justice, United States Attorney for the Western District of Texas, United States District Chief Judge for the Western District of Texas, and the Director of the Federal Bureau of Investigations. He is currently an attorney at Holland & Knight. He served as the initial chairman of the ABA Committee on Independence of the Judiciary and the honorary co-chairman of the ABA Commission on the 21st Century. He serves on the George W. Bush Presidential Library Steering Committee for Baylor University. Judge Sessions donated $4,562 to the Holland & Knight Committee for Effective Government. He also donated $1,000 to Pete Sessions (his son) for Congress and $500 to Connie Morella's Congressional campaign in 2002. He also donated $250 to President George W. Bush's presidential campaign in 2000, and $1000 to the Republican National Committee in 2000. In August 2004, he donated $250 to Wespac, the political action committee for Democratic Presidential candidate Wesley Clark.

Judge Sessions was also a vocal critic of the president's surveillance policy before the Task Force released its findings. On January 9, he co-signed a letter to Congressional leaders criticizing the surveillance program. According to the letter, "Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law." The President should thus seek legislative action if he believes FISA was insufficient. The letter concluded, "One of the crucial features of a constitutional democracy is that it is always open to the President-or anyone else-to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable." (Incidentally, the Task Force cites this letter in its report as an analysis helpful in reaching its recommendations of this issue.)James Silkenat

James Silkenat is a partner at Arent Fox and coordinates the firm's International Business Practice Group. He focuses on international joint venture, mergers and acquisitions, privatizations, project finance transactions, and private equity investment funds. He has served as Chairman of the International Law Section. He has served as Chairman of New York Delegation in the ABA House of Delegates since 2000. He is also the former chairman of the Lawyers Committee for International Human Rights (now Human Rights First). He currently serves on the Advisory Board to the Lawyers' Committee for the United Nations.

Suzanne Spaulding is the managing director at The Harbour Group, LLC. She previously was minority staff director for the U.S. House of Representatives Permanent Select Committee on Intelligence. She was also the Legislator Director and Senior Counsel to Senator Arlen Specter. Spaulding also worked for Representative Jane Harmon. Ms. Spaulding is the immediate past chairman and current Advisory Board member of the ABA's Standing Committee on Law and National Security. She also served as a member of the ABA President's Task Force on Enemy Combatants.

Spaulding contributed $1700 to John Kerry for President. She also contributed $250 to Evan Bayh's Senatorial Campaign in 1997.

In 2005, Spaulding articulated her concerns about the USA PATRIOT Act as part of the PATRIOT debates sponsored by the ABA's Standing Committee on Law and National Security. At a panel sponsored by the ABA, she stated, "I am delighted to contribute to the public debate over the USA PATRIOT Act, particularly since it was adopted so quickly with such limited debate at the time. In addition, I have grave concerns about the "lone wolf" provision, included in last year's intelligence reorganization bill, which allows for the government, for the first time, to use special intelligence powers against individuals who are acting entirely on their own, with no connection to any terrorists or foreign governments...It is critical that this "lone wolf" provision and key provisions of the USA PATRIOT Act are discussed fully before Congress decides later this year whether to renew or modify any of these powers."The "lone wolf" amendment to the Foreign Intelligence Surveillance Act (FISA) permits the use of intelligence surveillance authority against individuals who have no known ties to any foreign government or international terrorists.

Spaulding also published a December 25, 2005 editorial in The Washington Post critical of the surveillance policy. She dismissed the President's statement that members of Congress were briefed at least eight times about the program, asserting that those briefings were not sufficient notice. She wrote, "It is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response." The Bush Administration, Spaulding asserted, should have sought changes in the law before circumventing FISA. President Bush exerted "unprecedented authority" in its domestic surveillance activities.

Special Advisors

Two special advisors, law school deans Harold Hongju Koh of Yale and Elizabeth Rindskopf Parker of Pacific McGeorge, served as Special Advisors to the Task Force. Dean Koh served as a former Assistant Secretary of State under Madeleine Albright.

Dean Koh co-signed the same letter as William Sessions did concerning domestic surveillance.Dean Rindskopf Parker served as general counsel of the National Security Agency from 1984-89 and General Counsel of the CIA from 1990-95. In an interview with NPR in December, she was quoted as saying Congress had "very serious responsibility here to review what was done," although it was presumably doing this all along.

Alan Rothstein

Alan Rothstein, liaison to the task force, serves as General Counsel to the Association of the Bar of the City of New York. He previously served as the Associate Director of Citizens United, a "watchdog for the public interest and an advocate for good government" in New York. Rothstein has previously collaborated with Agrast and Sonnett. They were all listed as contacts for the ABA's 2004 torture recommendation referenced above. The Association of the Bar of the City of New York co-sponsored that recommendation.

Harris Poll

In addition to the findings of the Task Force, the ABA also released a survey on presidential power. The survey was conducted between February 3-6 by Harris Interactive. 1,045 adults responded, and results were weighted for age, sex, race, and geographical region. But the survey's methodology does not reveal whether the results were weighted for political affiliation.

The results broke down as follows:

43% of respondents agreed that, with respect to the "fight" against terrorism, "The President can suspend the constitutional freedoms of people like you (emphasis added) anytime the President thinks it is necessary to protect the country." 52% believed that, "The President alone should never be able to suspend the constitutional freedoms of people like you."

Only 22% believe the government would be justified in "eavesdropping on your personal communications" if it received an anonymous tip that you may be helping to plan a terrorist attack in the United States. Only 21% indicated the government would be justified in "eavesdropping" on you if someone voiced suspicion that you may be sending money to a terrorist organization. Only 8% believed surveillance would be acceptable if "you are a member or supporter of an organization which has publicly criticized the President." 45% agreed it is never acceptable for the government to "eavesdrop" on your personal communications without approval by a court or Congress.

These results differ from a number of other recent polls on the subject.

A poll conducted January 4-8 by the Pew Research Center for the People and the Press, found that 48 percent of respondents thought that "monitoring Americans suspected of terrorist ties without court permission" was "generally right," and 47 percent thought it was "generally wrong."

A January 20-25 CBS/New York Times poll indicated that 53% of respondents approve of President George W. Bush authorizing the monitoring of U.S. phone calls in order to fight terrorism without first getting court warrants, but 46% do not. The poll, according to press reports, undersampled Republicans.

A January 12 Fox News poll of 900 Americans conducted by Opinion Dynamics Corporation found that, by a 58 percent to 36 percent margin, Americans think the president should have the power to authorize the NSA to monitor electronic communications of suspected terrorists without getting warrants, even if one end of the communication is in the United States. 6 in 10 respondents say the President should have the power to authorize the National Security Agency to do computer searches of large numbers of international phone calls coming into and out of the United States without getting warrants in order to identify terrorist activity. 60% of Democrats and 75% of Republicans would not personally mind having the NSA monitor their own personal international phone calls.

The Federalist Society is preparing a comprehensive report to look further into the legal findings of the Task Force.